Research Briefing

The Reviews Are In: Elena Kagan Fails To Live Up To Her Own Standard For Forthright Testimony

Newsweek: “[Elena] Kagan Herself Could Be Accused Of Applying A Different Sort Of Double Standard By Backing Away This Week From Her Argument In A 1995 Book Review That Nominees Should Be Willing To Detail Their Views On Specific Issues.” (Stuart Taylor Jr., “Double Standards On Display In Kagan Hearings,” Newsweek, 6/30/10)

The Associated Press: “Republicans And Democrats Alike Expressed Frustration That She Wasn't Willing To Answer More Questions Despite Having Once Written A Book Review Saying Supreme Court Nominees Needed To Do Just That.” (David Espo, “Leahy Predicts Kagan Approval; Hearings Near End,” The Associated Press, 6/30/10)

• AP: Sen. Arlen Specter Was “Thwarted Several Times” In Getting “A Straight Answer.” “Democratic Sen. Arlen Specter of Pennsylvania, thwarted several times in his attempts to get Kagan to say whether she would recommend that the Supreme Court hear specific cases, said he was giving up — and wondered aloud whether there was any way short of opposing her confirmation to get a straight answer. ‘It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don't know that it would be useful to pursue these questions any further,’ Specter said. (Julie Hirschfield Davis, “Kagan Hearings Near End With Confirmation Likely,” The Associated Press, 6/30/10)

Politico: “Supreme Court Nominee Elena Kagan, Who Years Ago Called Such Hearings ‘A Vapid And Hollow Charade,’ Helped Ensure They Were Exactly That This Week.” “[O]ne was left wondering if the public would not be better served by forcing nominees to appear on ‘Meet the Press,’ ‘Face the Nation’ and ‘This Week’ — or at the very least ‘Larry King Live’ and ‘The View’ — instead of going through the current process. Would we really learn less? Could we possibly learn less?” (Roger Simon, “‘Vapid’? ‘Hollow’? Kagan Nailed It,” Politico, 6/30/10)

The New York Times: Kagan “Hewed Closely To The Script.” “During nearly eight hours on the witness stand Wednesday, Ms. Kagan hewed closely to the script she had set out for herself the day before, speaking expansively on matters where she was already on record, like the Citizens United campaign finance case, but exceedingly carefully on subjects that, like same-sex marriage, might come before the court.” (Sheryl Gay Stolberg, “Republicans Press Kagan On Social Issues,” The New York Times, 06/30/10)

• NYT: “[M]s. Kagan struck a delicate balancing act that proved frustrating to some senators even as the White House declared her ‘open and forthcoming.’” (Charlie Savage, “Kagan Follows Precedent By Offering Few Opinions,” The New York Times, 6/29/10)
• NYT: “She backpedaled, saying she now believed it would be inappropriate even to answer questions that might ‘provide some kind of hints’ about her views on matters of legal controversy.” (Charlie Savage, “Kagan Follows Precedent By Offering Few Opinions,” The New York Times, 6/29/10)

The Washington Post’s Dana Milbank: “Fate Cast Kagan As The Lead Actor In The Very Farce She Correctly Described” And “She Played The Role … With Platitudes, Personal Anecdotes And An Air Of Vacuity.”  “Fifteen years ago, Elena Kagan wrote a law review article calling the Supreme Court confirmation process ‘a vapid and hollow charade’ that takes on ‘an air of vacuity and farce.’ Instead of a quality discussion, she wrote, nominees offer ‘repetition of platitudes’ and ‘personal anecdotes.’ On Tuesday, fate cast Kagan as the lead actor in the very farce she correctly described. And, to nobody's surprise, she played the role according to the standard script: with platitudes, personal anecdotes and an air of vacuity.” (Dana Milbank, “The Dodgy Miss Kagan,” The Washington Post, 6/30/10)

The Wall Street Journal: The “Process Was Empty At Best And Dysfunctional At Worst.” “With Elena Kagan's nomination to the Supreme Court seemingly in the bag, frustrated senators from both parties turned their fire on the hearing process itself. Lawmakers suggested the process was empty at best and dysfunctional at worst. Hearings have become highly scripted affairs, and many senators said they provided little insight into a nominee's views.” (Naftali Bendavid And Jess Bravin, “Confirmed: Hearings Aren't Pleasing Anybody,” The Wall Street Journal, 7/1/10)

• WSJ: Kagan “Saying Little Of Her Beliefs.” “Over the three days, senators repeatedly came back to the 1995 article in which Ms. Kagan said such hearings had become ‘vapid’ and could benefit from more discussion of the nominee's views. She quickly backed away from that position on Tuesday and conducted herself much like other nominees, saying little of her beliefs. Since the 1987 rejection of Robert Bork, administrations have become adept at coaching nominees to reveal little.” (Naftali Bendavid And Jess Bravin, “Confirmed: Hearings Aren't Pleasing Anybody ,” The Wall Street Journal, 7/1/10)

The Boston Globe: “Kagan Did Her Best To Ensure Her High Court Nomination… Was Benign Event” “Elena Kagan declined to discuss her passions, demurred when asked anything that might tip her hand on the Supreme Court and invoked her right to remain inscrutable even on cases buried in the past. In short, Kagan did her best to ensure her high court nomination hearing was just the kind of benign event she criticized years ago for lacking ‘seriousness and substance.’ Her dodges over two days of questioning prompted chuckles in the Senate Judiciary Committee as members, keenly aware of what she wrote in 1995, watched her rhetorical dances.” (Calvin Woodward, “Spin Meter: What Happened To The Kagan Standard?” The Boston Globe, 7/1/10)

Law Professor Jonathan Adler: Kagan Hearing “Kabuki Theater.” “Wednesday's hearings offered more of the kabuki theater we have come to expect from Supreme Court confirmation hearings… Peppered with questions on topics from Habeas Corpus and the Commerce Clause to gun rights and gay marriage, Kagan refused to show her hand. She would not even identify a single ‘activist’ judge in the nation's history. She was happy to explain existing doctrine and identify the relevant precedents, but she would not so much as hint at how she might rule in future cases.” (Jonathan H. Adler, “Kagan's Second Day Of Questioning,” The Washington Post, 6/30/10)

CNN: Kagan “Declined To Indicate How She Might Rule.” “Supreme Court nominee Elena Kagan was hit with a blizzard of questions about politically thorny social and economic issues in her Senate confirmation hearings Wednesday. In keeping with the tradition of other recent high court nominees, however, the 50-year-old solicitor general repeatedly declined to indicate how she might rule if approved, leading one senator to bemoan what many observers now characterize as a confirmation process devoid of substance.” (Bill Mears and Alan Silverleib, “Kagan Pledges Judicial Independence,” CNN, 6/30/10)

The Washington Post: Kagan “Retreated Into Broad Statements.” “During more than eight hours of friendly questions from Democratic Senators and sharper grilling by Republicans, Kagan remained somewhat guarded. At times, she retreated into broad statements about the Constitution or recited legal precedent on polarizing questions without divulging her own views.” (Robert Barnes and Amy Goldstein, “Kagan Refuses To Criticize Supreme Court, Vows To Be Politically Independent,” The Washington Post, 6/30/10)

USA Today: Kagan “Shielding Her Personal Views.” “In her second day of questions from the Senate Judiciary Committee, U.S. Solicitor General Kagan continued her cautious testimony, relating the status of the law in many areas and shielding her personal views.” (Joan Biskupic, “On Day 3, Kagan Testifies Cautiously,” USA Today, 6/30/10)